Introduction
Co-ownership is the terminology often used to describe atype of property ownership in which two or more people are simultaneously entitled in possession or to an interest on the same property (Hoffman, 2011). The law governing co-ownership can be traced from the statute and the common law of the United Kingdom,most specifically the Law of Property Act and the Trusts of Land and Appointment of Trustees Act 1996. There are basically two types of co-ownership namely: joint tenancy and tenancy in common (common tenancy), wherejoint tenancy is a kind of co-ownership in which each individuals (property co-owners)are fully entitled to the whole of the estate in question. In a joint tenancy the joint tenants enjoy amongst themselves a solemn right of survivorship plus a presumption of four unities as discussed below:First, all co-owners or tenants are entitled to a basic unity of interest, where all co-owners are in the capacity of getting similar rates of interest on the estate owned. Second, all estate co-owners are entitled to a unity of possession that advocates for equal possession of the property in question for instance, land, flats, estate and many more. The third unity shared by joint tenants is referred to as unity oftitle which indicates that all joint co-owners must acquire property titles by similar documents. Fourth, all joint tenants are obliged to adhere to the unity of time which implies that the accrued interests must be vested at the same time (Michaels & Norris, 2010). Finally, according to Pattison, Diacon and Vine (2010), they are all governed by the survivorship principle which indicates that when one of the joint tenants dies, the ownership of the remaining jointly possessed estate will be passed to the surviving co-owners irrespective of whetherthe dead co-owner left a will to transfer their ownership rights to different parties prior to their demise as, the right of survivorship surpasses the contents of any written will.This is a short advisory paper aimed at giving legal advices to Miss Z on how to reclaim the estate they jointly owned with her two sisters the late Miss X and Miss Y who were for the ideaof selling their estate in London Pool despite Miss Z’s constant refusal due to the estate’s strategic purposes and the current credit crunch in the market.
The Case
Three sisters, X, Y and Z, were amongst the earliestbuyers of flats in London Pool estate. With finances inherited from their mother’s riches, they bought a huge three-bedroom flat in a block with quicker access, perfect lifts and river views, as joint co-owners in law and equity. During the period of purchase all sisters had gotten jobs in a London hospital with X and Y securing positions as nurses, while Z became a medical secretary though she had been disabled from her birth. However, she learnt and became a world-class wheelchair basketball participant and was alsobelonged to the Great Britain’s Paralympicsteam. The flat was close to theirteam’schief training amenities. In fact, they chose this flat, due to its convenient accessibility for Miss Z. Even though, when the flat was bought the three siblings intended staying in the flat together; three months later, Miss X applied and was admitted for a postgraduate degree in Scotland that was suppose to beginin September 2012 and after discussing the chance with her sisters (Y and Z),sheproposed that she would opt for the flat to be sold, so that she could have her fraction of the flat in order to pay for her fees and expenses whilst undertaking the degree program. After bitter exchanges, Y and Z told her they were not interestedinselling the property forcing Miss X to consult a solicitor asking her to prepare a ‘notice of severance’. She was due to sign the notice at the solicitor’s office on 4th April 2012, but wasunfortunately involved in a car accident on her way back and died two days later. Miss Y and Z were informed that before her death,Miss X was very annoyed by theirdifferences and prepared a will abandoning all her real and personal property to her cousin, Miss W. In the due course MissY wasgrief-stricken over the loss of her Miss X and opted to sell the flat as; she found it hard to continue leaving in the disputed house. However, Z imagines that it is unlikely that she would get another flat that could best suit her needs, most specifically close to her training facilities and of good access to public transport like the flat they are about to sell. Z also believes that the ‘credit crunch’meant that the flat would be worth less than the sisters paid for it and would like to tarry and see if the property market improves before making any decision to sellit.
Advicefor Miss Z
In as much as Miss Z’s stand appears to be glued to the house’s closeness to her training facilities in London, she is also in her full right to decline the selling of their jointly owned London flat since,section 36 (2) of LPA 1925 laws strongly prohibitany kind of severance of a legally joint tenancy (Fawcett & Torremans, 2011). In the context of the United Kingdom law, severance refers to a process of converting a joint tenancy into a tenancy in common by the following means including mutual agreement, use ofwritten notice to apply for court order, homicide and through alienation or sale. However,this case might have been complicated if her sister Miss X would have signed a written notice to severe the joint ownership by a court order in order to sell her share of the estate (Finney, 2010). Luckily enough Miss X dies on her way back to the solicitor. This implies that the ownership of the estate is still safely bound in the arms of the two remaining sisters Miss Y and Miss Z herself as, according to Abbey and Richards (2007), the law dictates that upon the demise of one of the co-owners of a property, the surviving co-owners becomes the rightful owners of the property (the survivorship principle of joint tenancy). The survivorship scheme is not threatened by the fact that prior to her death, Miss X wrote a will specifying that her full ownership rights be transferred to her cousin Miss W implying that Miss W is not a legal joint tenant of the estate in question. Things only worsened for Miss Z when her co-owner sister; Miss Y also decided to sell the property after empathising with her sister’s death in pursuit of the sale of the flat. The turn of events works out to Miss Z’s disadvantage making it seem so futile to cling to her interest of not selling the flat but, given the ideological differences at stake, the case can be best concluded in a court of law; where the court will assess the situationborrowing leafs fromsection 14 of the Trust of Land, Property and Appointment of Trustees (TLATA) Act 1996to analyse the situation as follows: the intentions of the person who established the trust (usually the co-owners themselves)? The purposes for which the property is held (for instance, family home)? The welfare of any minor who occupies the property orland as his or her home (whether or not as a child of the owner)? The interests of any secured creditor, e.g. mortgagee? The wishes of any other equitable owner or beneficiary? And many more, to give accurate ruling on the matter (Faber & Lurger, 2009).
It is worth noting that during her two-day illness Miss X was ill advised to write a will stipulating that her “share” and ownership rights be transferred to her cousin Miss W as, by the rule of law, the will is deemed powerless and can neither be used to severe a joint tenancy nor interfere with the tenants’ survivorship rights. As it dawns, it is clear that the bone of contention is basically between Miss Z and her sister Miss Y.This makes things a little bit easier as Miss Y settled on the idea simply due to the sympathy she developed for her late sister, Miss X. Legally; co-owners must give tangible reasons to enable the severance of joint co-ownership methods by any means. Not unless her sister, Miss Y develops proper severance reasons, they can still safely own the flat, but if Miss Y develops proper reasons to sell the flats, then she could as well identify a solicitor and by use of a written document/notice,she can decide to severe their joint tenancy by a court order(Terrell & Thorley, 2000). The current situation leaves Miss Z with few options of trying to prevent the severance of the flatsince, a jointly owned property is usually sold in its entirety in cases of severing its ownership, contrary to when the tenants are in a common tenancy, where the disputed properties are sold and shared according to the contributions or shares of the co-owners on the disputed property. In case of severance, then Miss Z can use her share to buy another parcel or building another house around London Pool to meet her needs of comfortably accessing her training facilities. The only possible means of severing their joint co-ownership will be through the issuance of a court order that will dictate that the disputed flat be sold and the spoils be shared equally amongst the two legal co-owners, Miss Y and Z. This is because other severance mechanisms like through mutual agreement can’t hold as the sisters are of different opinions, while severance through homicide is considered anevil step to make especially to your siblings.
References
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Fawcett, JJ, & Torremans, P, 2011, Intellectual Property and Private Law, London, UK: Oxford University Press.
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Thomas v Farr plc and another [2007] EWCA Civ 118 CA
